Camilleri v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 42 /5 AT WELLINGTON DCA No. 43/93 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act 49 93 1341 BETWEEN CARMELINA MARIA CAMILLERI of Auckland APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act RESPONDENT Date of Hearing: 27 March 1995 Date of Decision: 9 May 1995 Counsel: Appellant in person Ms P. Zumbach for Respondent RESERVED DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is whether the Appellant has suffered personal injury by accident. 2 . On 27 November 1992 the Appellant lodged a claim with the Respondent for damage to her left ear as a result of an aural toilet performed on 22 July 1992 by a registered nurse. The Appellant alleges that the nurse "hurt me while she was cleaning it with a little warm water, it took quite a while to remove the wax and she even used a tweezer to pull it and showed some blood too." As a result, the Appellant says she suffered sudden hearing loss and told the Review Officer she was hearing two voices and could not even hear her own voice properly. She is still receiving medical treatment. A C14 first medical certificate dated 26 November 1992, signed by the Appellant's general practitioner, accompanied the claim form. The certificate described the injury as syringing of the left ear and the date she was first seen was 22 July 1992. Dr Hewitt wrote under Diagnosis:- "Aural toilet left ear. Drum intact, no hearing deficit complained of after procedure." At the bottom of the certificate Dr Hewitt added the words:- "Form being supplied at patient request. Seen by E & T Dr Mills, Dr Baber who are author of the opinion that this is not PIBA. I am not of the opinion that this is PIBA." On 7 August 1992, the Appellant went to the emergency hospital at 122 Remuera Road where she saw Dr Parker. He gave her a letter to get to see the Hearing Association who tested the Appellant's ears. The Appellant 3. says that she was told by the Hearing Association that the syringing must have damaged her ear because it was a sudden loss of hearing. A referral letter dated 11 August 1992 from the Hearing Association and Hearing Aid Fitting Service to Dr Hewitt states:- "Mrs Camilleri was referred to us from the Accident and Emergency Clinic, 122 Remuera Road, for a hearing test. We found she had a low frequency hearing loss in her left ear and felt she needed to be seen as soon as possible by an E & T specialist as we feel she had possible outer middle ear damage." On 21 September 1992 Mr Mills, an ENT surgeon when referring the Appellant to the Greenlane Otolaryngology Department reported as follows:- '.. . I first saw this woman on 13 August. She told me that on 22 July she could not hear properly and went along to her family doctor to have her ears cleaned. She maintains that when her left ear was syringed that something happened to it and affected her hearing ... Examination at that time was remarkable. In particular there was no physical evidence of damage to the ears. Tuning fork tests suggested sensori neural loss on the left side and pure tone audiometry confirmed this with some evidence of recruiting. At that time I felt she had a sudden hearing loss on the left hand side but as some time had passed I did not feel she warranted admission." I treated her with CRC tablets. She has continued to have problems and her hearing in the left ear has not improved. 4. This woman can no longer afford private consultation and I am still concerned she may have an Endolymphatic Hydrops type picture although not classical ..." Mr Baber of the Greenlane Otolaryngology Department reported to Dr Hewitt on 16 November 1992 as follows:- "Thank you for referring Mrs Camilleri who I saw in the clinic today. Her history is of a somewhat complicated one, starting with a blocked feeling in her left ear for which she finally went along to her doctor to have syringed. Wax was noted and the left ear was syringed first with some discomfort and I think even bleeding from the ear. Because of the degree of discomfort the wax in the right ear was softened first and syringed two days later without any ill effects. However, ever since the syringing of the left ear she complains that her hearing on that side has been affected and that voices sound different. At the time of syringing she was not vertiginous and she hasn't noticed any fullness or pressure or vertigo since. I was a little unclear as to whether she actually gets tinnitus but in the end decided that she didn't ... There has been no improvement since the syringing although she feels the CRC SERC might make some difference. Examination shows no abnormality in the ears, the drums being intact and mobile and the canals clear. Pure tone audiometry confirms the low frequency loss in the left ear affecting only 250 and 500 cycles per second. Speech discrimination was normal and middle ear function normal. The low frequency loss that Mrs Camilleri has is not at all typical of trauma from syringing and is indeed more suggestive of a hydropic episode and hence the SERC prescribed by Mr Mills. However, it seems to me that she has more likely had a sudden hearing loss and was also noted to have wax in the ears and of course dates the hearing loss from the syringing rather than the sudden change." 5. Dr Hewitt wrote to the Appellant's solicitors on 11 November 1992 as follows:- "Mrs Camilleri consulted me for the first time ever on 22 July 1992. She complained of a blockage in the L ear but no pain. Examination revealed Cerumen. She was advised to soften the wax with oil and return for syringing. On 24. 7.92 she commented to my practice nurse prior to the syringing that she had hearing loss and noises like 'running water'. Aural toilet was then performed and the wax was removed. In answer to your first question, her complaint could be explained by the presence of was blocking the auditory canal. ... In answer to your final question is that it appears Mrs Camilleri had the symptoms of hearing loss and noises in her ears prior to coming to my surgery and certainly prior to the aural toilet performed on 24.7.92 by my practice nurse ...' Dr Hewitt reported by letter 2 October 1992 to the Appellant's solicitors as follows:- "A letter from Mr Mills revealed no physical evidence of damage to the ear. The notes at 122 Remuera Road where Mrs Camilleri was seen on 8.8.92 say, 'Enstachen tube dysfunction auto inflated. Drum normal. No sign of injury.' While it appears Mrs Camilleri has L sided hearing loss, it is apparent from my records and confirmed by those of 122 Remuera Road, and Dr David Mills, that the procedure performed on 22.7.92 was in no way related." The Review Officer in her decision of 15 April 1993 concluded:- 6 . "The question in this case is whether the applicant has suffered personal injury caused by accident to be entitled to cover under the 1992 Act. After considering all the medical evidence, I find that the applicant has not suffered personal injury caused by accident. The two specialists reports from Mr Mills and Mr Baber confirm that there was no physical injury to the left ear, Mr Baber has added that the low frequency hearing loss that the applicant currently suffers from is not typical of trauma from syringing. Both specialists indicate that the applicant's current condition is probably suggestive of Endolymphatic Hydrops. It appears from the examination at the Accident and Emergency Centre that there was no sign of injury to the left ear. Dr Hewitt also suggests that the applicant's symptoms of hearing loss and noises in the ears occurred prior to the aural toilet being performed on 22 July 1992. Overall, the medical evidence supports that there was no personal injury as a result of the aural toilet performed on the left ear on 22 July 1992. The 1992 Act also specifically excludes under s.10, personal injury wholly or substantially caused by gradual process, disease or infection. The specialists have indicated that the applicant's condition may be due to Endolymphatic Hydrops and if so, the applicant's condition is excluded from cover under the Act. I find that the applicant's condition has not been caused by the aural toilet performed on 22 July 1992 and there was no personal injury involved, therefore there was no personal injury caused by accident to entitle the applicant to cover under the 1992 Act." Ms Zumbach said the Respondent's position is that the medical evidence does not support the Appellant's claim that she has suffered personal injury by accident within the meaning of that phrase as provided in the Act.' She submitted that the evidence did not support a view that the Appellant had suffered a medical misadventure, rather that the Appellant has a disease or infection condition which is excluded from cover by s.10 of the Act. 7. The onus of proof is on the Appellant to persuade the Court on the balance of probabilities and in this case the Respondent is relies on the medical evidence available. I accept there is no medical evidence that the Appellant has suffered an "accident". There is no medical evidence that the procedure conducted by Dr Hewitt's nurse involved the application of a force or resistance that resulted in personal injury. Nor is there any medical evidence that the Appellant has suffered medical misadventure. Dr Hewitt's nurse is a registered health professional in terms of the Act, but the reports from the two ENT specialists do not contain any suggestion that a medical error or medical mishap occurred. I have also concluded that there is no medical evidence that the Appellant has suffered personal injury. The C14 first medical certificate records that the drum as being "intact" and Dr Hewitt was of the opinion that this was not personal injury by accident. Mr Mills, in his report of 21 September 1992 noted that in particular there was no physical evidence of damage to the ears, and his concern was that the Appellant may have "an Endolymphatic Hydrops type picture". Dr Hewitt has reported that the notes from the Accident & Emergency Clinic at 122 Remuera Road where the Appellant was seen on 8 August 1992 recorded:- "Enstachen tube dysfunction auto inflated. Drum normal. No sign of injury." Dr Hewitt also noted on 24 July 1992 that the Appellant had commented to his practice nurse that prior to the syringing she had hearing 8. loss and noises like "running water". In Dr Baber's report of 16 November 1992 he wrote that the examination showed no abnormality, the drums being intact, mobile and the canals clear. In his opinion, the low frequency loss suffered by the Appellant is not at all typical of trauma from syringing, and was more suggestive of a hydropic episode and he therefore prescribed SERC. Both Mr Mills and Mr Baber are of the view that the Appellant's current condition is probably suggestive of Endolymphatic Hydrops or Meniere's Disease as defined by Stedman's Medical Dictionary (22nd Edition). In my view, the medical evidence does not support the Appellant's claim that she has suffered personal injury as a result of the aural toilet performed by Mr Hewitt's nurse on her left ear on 22 July 1992. There is no medical evidence to confirm that she has suffered a physical injury. Dr Hewitt, Mr Mills and Mr Baber confirm that she has not suffered an injury. The appeal is therefore dismissed. The Corporation does not seek costs. (Jane H. Lovell-Smith) District Court Judge